Give it up, Governor

Published: Thursday, January 9, 2014 at 08:00 AM.

“If persons in an economic demographic could be shown to have a higher rate of drug use, would all such persons in that economic group be subjected to drug testing?” she wrote. “Even if such suspicionless testing as proposed by the State were limited to those persons receiving state funds, would college students receiving governmental assistance to subsidize their education, for example, be subjected to random, suspicionless drug testing if it could be shown that drug use is demonstrably higher among college students? The Supreme Court’s Fourth Amendment precedent would suggest not.” Florida suffered a similar judicial smackdown last year when the 11th Circuit upheld a lower-court judge’s injunction against the governor’s proposal to randomly drug test all state employees.

After being hacked up in the courts, you might think Scott would reconsider his position. Instead, after Judge Scriven’s order on Dec. 31, the governor vowed to appeal it. With what, more of the same futile arguments?

If he truly is acting in the taxpayers’ interest, he could save the state money by ending these quixotic appeals. He’s making Inspector Javert look rational.

His best bet is to watch what other states are doing. Last year, according to the National Conference of State Legislatures, at least 29 states proposed legislation requiring some form of drug testing or screening for public assistance recipients. Some at least stipulate there must be grounds for suspicion to conduct a test on an individual. See if that approach passes the courts’ constitutional muster. We already know Florida’s won’t.

When it comes so the legality of his drug-testing policies, Gov. Rick Scott is like the Black Knight in “Monty Python and the Holy Grail”: He doesn’t have a leg to stand on.

Nevertheless, he declares he’s ready to continue fighting. Unlike Monty Python, this is no joke.

Predictably, Scott was dealt yet another legal blow recently when a federal judge in Orlando ruled that a 2011 Florida law requiring welfare applicants to undergo drug tests is unconstitutional. U.S. District Judge Mary Scriven had initially blocked the law on the grounds that the drug tests constituted an unreasonable search and seizure under the Fourth Amendment. The state appealed the decision to the 11th Circuit Court of Appeals in Atlanta, which in February 2013 upheld Judge Scriven’s temporary injunction and sent the case back to her court for the state to re-argue.

Amazingly, the state’s lawyers pretty much repeated their losing argument. Judge Scriven was even less impressed with it this time around.

The U.S. Supreme Court previously has ruled against government mandating random, suspicionless testing of those seeking public assistance, and those seeking public office. States must show extraordinary circumstances exist to warrant an exception (such as jobs involving public safety).

Florida has argued the drug tests are necessary to ensure welfare recipients’ job readiness, to protect children from drug-using families and to guarantee that the public money is used for its intended purpose and not spent on drugs. However, in each step of the legal process Florida has failed to demonstrate that welfare recipients use drugs more than the general population or that the testing program was reducing drug use or saving taxpayers money.

Even if it had, though, Judge Scriven was skeptical of the constitutionality of that approach.

“If persons in an economic demographic could be shown to have a higher rate of drug use, would all such persons in that economic group be subjected to drug testing?” she wrote. “Even if such suspicionless testing as proposed by the State were limited to those persons receiving state funds, would college students receiving governmental assistance to subsidize their education, for example, be subjected to random, suspicionless drug testing if it could be shown that drug use is demonstrably higher among college students? The Supreme Court’s Fourth Amendment precedent would suggest not.”
Florida suffered a similar judicial smackdown last year when the 11th Circuit upheld a lower-court judge’s injunction against the governor’s proposal to randomly drug test all state employees.

After being hacked up in the courts, you might think Scott would reconsider his position. Instead, after Judge Scriven’s order on Dec. 31, the governor vowed to appeal it. With what, more of the same futile arguments?

If he truly is acting in the taxpayers’ interest, he could save the state money by ending these quixotic appeals. He’s making Inspector Javert look rational.

His best bet is to watch what other states are doing. Last year, according to the National Conference of State Legislatures, at least 29 states proposed legislation requiring some form of drug testing or screening for public assistance recipients. Some at least stipulate there must be grounds for suspicion to conduct a test on an individual. See if that approach passes the courts’ constitutional muster. We already know Florida’s won’t.